Some answers regarding the EU Copyright reform

flag-2608475_960_720.jpgThe European Commission published answers to a variety of questions regarding the Copyright reform that has been approved recently. The questions are as follow:

1. The European Parliament voted on the new copyright rules at EU level – what are they about?
2. Why do we need to modernise the EU copyright rules?
3. Are the new copyright rules limiting users and their freedom online?
4. Will the Directive impose upload filters online?
5. Will the Copyright Directive prevent users from expressing themselves on internet in the same way as now? Will memes and GIFs be banned?
6. How will the new Copyright rules tackle the discrepancy between the remuneration of creators and that of certain online platforms (the so-called ‘value gap’)?
7. How will the new copyright rules on user-uploaded platforms benefit the users?
8. What are the services covered by the new rules on user-uploaded platforms?
9. What will be the special regime for startups and smaller enterprises?
10. What will happen to online encyclopaedias (like Wikipedia) that are based on content uploaded by users?
11. How will the new press publishers’ right work?
12. Are small and emerging press publishers going to be affected by the reform?
13. Is the new Copyright Directive creating a “hyperlink tax”?
14. With the new rules, will the use of “snippets” be forbidden?
15. How will the new Directive benefit journalism and journalists?
16. How will the Directive ensure fair remuneration for individual authors and performers?
17. How will the new copyright rules strike a fairer balance in the relationships between creators and their contractual partners?
18. What is the contract adjustment mechanism? Does it interfere with contractual freedom?
19. What is the revocation mechanism and why is it needed?
20. What are the new exceptions to copyright laid down in the Copyright Directive?
21. How will the new copyright rules benefit researchers?
22. What is the purpose of the other, general, text and data mining exception?
23. Who will benefit from the new teaching exception?
24. Will the new copyright rules enhance the preservation and availability of cultural heritage?
25. What will it change for users with regards to “public domain” content?
26. How will the new copyright rules foster the availability of EU audiovisual works on video-on-demand platforms?

You can find the answers here.

Advertisement

Kellogg lost an opposition against a UK brewery

pexels-photo-459280.jpegKellogg Company lost an opposition in The UK. The case concerns the trademark application for FRUIT LOOP filed by the local brewery Fuller for class 32 – Beer, ale, lager, stout and porter; non-alcoholic beers.

Against this mark, Kellogg invoked its rights over the early registered trademark with reputation FREET LOOPS for class 30 – Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and non-frozen confectionery; honey, treacle; yeast, bakingpowder; salt, mustard; vinegar, sauces (condiments); spices.

The opponent claims that it has reputation under the above mark in respect of “preparations made from cereals”. It claims that use of the mark in suit would take unfair advantage of its mark and use of it would ride upon the coat tails of the opponent’s reputation and marketing efforts which would provide an unfair advantage. Use of the mark in suit would also dilute the distinctiveness of its mark, and the association of the opponent’s product with use on alcoholic beverages is likely to cause detriment to its reputation.

The Patent Office disagreed dismissing the opposition. According to the Office, there was only a low level of similarity between both signs for dissimilar goods.

The key moment in the opposition was the claimed reputation of the earlier sign. According to the Office, it wasn’t proved sufficiently which to show that the mark had been used for a prolonged period in the UK in a way that consumers are aware for its high level of reputation.

Source: WIPR.

Whether Don Quijote de la Mancha relates to a PDO cheese?

pexels-photo-220112.jpegThe European Court has ruled in case C‑614/17 Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego v Industrial Quesera Cuquerella SL. This interesting case regards the issue of whether a geographical indication can be infringed by a graphical representation that can be related to it. In detail:

The Queso Manchego Foundation is responsible for managing and protecting the PDO ‘queso manchego’. On that basis, it brought an action against the defendants in the main proceedings before the Spanish court of first instance with jurisdiction to hear the case seeking a declaration that the labels used by IQC to identify and market the cheeses ‘Adarga de Oro’, ‘Super Rocinante’ and ‘Rocinante’, which are not covered by the PDO ‘queso manchego’, and the use of the words ‘Quesos Rocinante’ infringe the PDO ‘queso manchego’ because those labels and those words constitute an unlawful evocation of that PDO for the purpose of Article 13(1)(b) of Regulation No 510/2006.

The Spanish court of first instance dismissed that action on the ground that the signs and names used by IQC to market the cheeses which were not covered by the PDO ‘queso manchego’ were not visually or phonetically similar to the PDOs ‘queso manchego’ or ‘La Mancha’ and that the use of signs such as the name ‘Rocinante’ or the image of the literary character Don Quixote de La Mancha evoke the region of La Mancha (Spain) and not the cheese covered by the PDO ‘queso manchego’.

The Queso Manchego Foundation brought an appeal against that decision before the Audiencia Provincial de Albacete (Provincial Court, Albacete, Spain), which, by judgment of 28 October 2014, upheld the judgment at first instance. That court held that, for cheeses marketed by IQC which are not covered by the PDO ‘queso manchego’, the use of landscape and images typical of La Mancha on the labels of those cheeses leads consumers to think of the region of La Mancha but not necessarily of the cheese covered by the PDO ‘queso manchego’.

The applicant in the main proceedings brought an appeal against that judgment before the Tribunal Supremo (Supreme Court, Spain).

In its order for reference, the Tribunal Supremo (Supreme Court) sets out a number of factual considerations.

First of all, the referring court states that the word ‘manchego’ used in the PDO ‘queso manchego’ is the adjective which describes, in Spanish, the people and the products originating in the region of La Mancha. Next, it observes that the PDO ‘queso manchego’ covers cheeses made in the region of La Mancha from sheep’s milk in accordance with the traditional production, preparation and ageing requirements set out in the product specification of that PDO.

Moreover, the referring court states that Miguel de Cervantes set most of the story relating to the fictional character Don Quixote de La Mancha in the region of La Mancha. Don Quixote is also described by the referring court as having certain physical features and clothing similar to those of the character depicted on the figurative design on the label of the cheese ‘Adarga de Oro’. In that regard, the archaic word ‘adarga’ (small leather shield) is used in [Cervantes’] novel to describe the shield used by Don Quixote. In addition, the referring court notes that one of the names used by IQC for some of its cheeses is the name of the horse ridden by Don Quixote de La Mancha, namely ‘Rocinante’. The windmills which Don Quixote fights are a typical feature of the landscape of La Mancha. Landscapes featuring windmills and sheep appear on some of the labels used for the cheeses produced by IQC which are not covered by the PDO ‘queso manchego’ and in some of the illustrations on IQC’s website, which also advertises cheeses not covered by the PDO.

In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must the evocation of a [PDO], prohibited by Article 13(1)(b) of Regulation No 510/2006 necessarily be brought about by the use of a name visually, phonetically or conceptually similar to the [PDO] or may it be brought about by the use of figurative signs evoking the [PDO]?

(2)  When the [PDO] is of a geographical nature (Article 2(1)(a) of Regulation No 510/2006) and when the products are the same or comparable, can the use of signs evoking the region with which a [PDO] is associated constitute evocation of the [PDO] itself, within the meaning of Article 13(1)(b) of Regulation No 510/2006, which is prohibited even when the user of those signs is a producer established in the region associated with the [PDO], but whose products are not protected by [that PDO] because they do not meet the requirements set out in the product specification, apart from the geographical provenance?

(3)  Must the concept of the average consumer who is reasonably well informed and reasonably observant and circumspect, to whose perception the national court has to refer in order to assess whether there is “evocation” within the meaning of Article 13(1)(b) of Regulation No 510/2006, be understood to cover European consumers or can it cover only consumers of the Member State in which the product giving rise to evocation of the protected geographical indication is produced or with which the PDO is geographically associated and in which the product is mainly consumed?’

The Court’s decision:

1.  Article 13(1)(b) of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs must be interpreted as meaning that a registered name may be evoked through the use of figurative signs.

2. Article 13(1)(b) of Regulation No 510/2006 must be interpreted as meaning that the use of figurative signs evoking the geographical area with which a designation of origin, as referred to in Article 2(1)(a) of that regulation, is associated may constitute evocation of that designation, including where such figurative signs are used by a producer established in that region, but whose products, similar or comparable to those protected by the designation of origin, are not covered by it.

3.  The concept of the average consumer who is reasonably well informed and reasonably observant and circumspect, to whose perception the national court has to refer in order to assess whether there is ‘evocation’ within the meaning of Article 13(1)(b) of Regulation No 510/2006, must be understood as covering European consumers, including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed.

Does AIRBNB break the law in France?

airbnb-2384737_960_720.jpg

The Advocate General of the European Court M. SZPUNAR  gave an opinion in the case  C‑390/18 AIRBNB Ireland v Hotelière Turenne SAS, Association pour un hébergement et un tourisme professionnel (AHTOP)Valhotel. The case concerns the following:

AIRBNB Ireland UC, a company governed by Irish law established in Dublin (Ireland), is part of the AIRBNB group and is wholly owned by AIRBNB Inc. AIRBNB Ireland administers, for all users established outside the United States, an online platform designed to connect, on the one hand, hosts (professionals and individuals) with accommodation available to rent with, on the other hand, persons seeking that type of accommodation.

Following a complaint against an unknown person, together with an application to join in the proceedings as civil party, lodged by, in particular, the Association pour un hébergement et un tourisme professionnel (AHTOP), the Prosecutor’s Office, Paris (France) on 16 March 2017 issued an initial indictment for handling of funds, for activities involving mediation and management of real property and business activities by a person not in possession of a professional licence, in accordance with the Hoguet law, and for other offences, alleged to have been committed between 11 April 2012 and 24 January 2017, and changed the status of AIRBNB Ireland to a ‘témoin assisté’ (a person who is not merely a witness, but to some extent a suspect).

AIRBNB Ireland denies acting as a real estate agent and claims that the Hoguet law is inapplicable on the ground that it is incompatible with Directive 2000/31.

It was in those circumstances that the investigating judge of the Tribunal de grande instance de Paris (Regional Court, Paris) (France), by decision of 6 June 2018, received at the Court on 13 June 2018, decided to stay proceedings and to refer the following questions to the Court:

‘(1) Do the services provided in France by the company AIRBNB Ireland via an electronic platform managed from Ireland benefit from the freedom to provide services provided for in Article 3 of [Directive 2000/31]?

(2) Are the restrictive rules relating to the exercise of the profession of real estate agent in France, laid down by [the Hoguet law], enforceable against the company AIRBNB Ireland?’

The Advocate’s opinion:

1) Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), read in conjunction with Article 1(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, must be interpreted as meaning that a service consisting in connecting, via an electronic platform, potential guests with hosts offering short-term accommodation, in a situation where the provider of that service does not exercise control over the essential procedures of the provision of those services, constitutes an information society service within the meaning of those provisions.

2)  Article 3(4) of Directive 2000/31 must be interpreted as meaning that a Member State other than that in whose territory a provider of an information society service is established cannot, for reasons falling within the coordinated field, restrict the free movement of those services by relying, as against a provider of information society services, on its own initiative and without an examination of the substantive conditions being necessary, on requirements such as those relating to the practice of the profession of real estate agent, laid down in Law No 70-9 of 2 January 1970 regulating the conditions of the exercise of activities relating to certain transactions concerning real property and business assets.

Swatch prevailed over Apple in a trademark dispute

sydney-363244_960_720A recent trademark battle between Apple and Swatch has ended with success for the Swiss company.

The dispute at hand concerned a trademark application for ‘one more thing’ filed by Swatch.

Apple filed an opposition arguing that this phrase was well-known by consumers in relation to its products because it had been used in their launching.

The Australian Patent Office disagreed stating that according to the evidence Apple had used this phrase only once. This wasn’t enough to constitute real trade usage for the purpose of the trademark opposition procedure.

In addition, Swatch emphasized that the idea for this trademark was inspired by the  “film noir” genre and in particular by the character of Colombo detective who regularly used this phrase in his investigations.

Source: WIPR.

The battle for ICELAND continues

pexels-photo-414101Iceland Foods will appeal the EUIPO’s decision for cancelation of its trademark ICELAND registered in 2014 for classes 7, 11, 16, 29, 30, 31, 32, 35. This trademark is used for supermarkets in The UK.

The procedure was initiated by Promote Island, a government organization from Iceland based on Article 52(1) EUTMR in conjunction with Article 7(1)(c) EUTMR:

The following shall not be registered:

  • (a) signs which do not conform to the requirements of Article 4;
  • (b) trade marks which are devoid of any distinctive character;
  • (g) trade marks which are of such a nature as to deceive the public, for instance as to the nature, quality or geographical origin of the goods or service;

The EUIPO agreed with Promote Island and canceled the trademark. The arguments for this are:

It follows from all of the above that ‘ICELAND’ may serve, from the point of view of the public concerned, to designate an essential and desired characteristic of the goods and services.

Therefore, the mark conveys obvious and direct information regarding the geographical origin of the goods and services in question, and in some cases, the subject matter of the goods as well.

Considering all of the above, it follows that the link between the word ‘ICELAND’ and the contested goods and services is sufficiently close for the sign to fall within the scope of the prohibition laid down by Article 7(1)(c) EUTMR and Article 7(2) EUTMR and that this was also the situation at the time of filing of the contested EUTM, namely, 19/04/2002.

The EUIPO found that Iceland Food failed to prove acquired secondary distinctiveness in the EU.

The Icelandic foreign minister Gudlaugur Thór Thórdarson expressed his satisfaction with this decision.

“It is contrary to common sense for a foreign company to be able to appropriate the name of a sovereign state as was being done in this case”, the minister said.

Iceland’s foreign ministry added that consumers were likely to associate the mark with “the country of Iceland for all goods and services the registration is claimed for”.

Source: WIPR.